Ling v Minister for Immigration - [2004] FCA 1069

FEDERAL COURT OF AUSTRALIA
Ling v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1069
MIGRATION – Other Family (Migrant) (Class BO) visa – review by Migration Review Tribunal – information which Tribunal considers would be reason or part of the reason for affirming decision under review – Tribunal’s duty to invite comment – whether Tribunal failed to perform duty – discretion to refuse relief – whether performance of duty would have resulted in practical injustice – s 359A of the Migration Act 1958 (Cth)
INTERPRETATION – meaning of ‘information’ – meaning of ‘the application’ – subs 359A(1), subs 359A(4) of the Migration Act 1958 (Cth)
ADMINISTRATIVE LAW – procedural fairness – apprehension of bias – decision of Migration Review Tribunal – whether a fair-minded lay person properly informed would apprehend bias
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) s 357A, s 359A, s 479, subs 29(1), subs 474(1)
Migration Regulations 1994 r 1.15, cl 1123A of sch 1, cl 115 of sch 2
Minister for Immigration & Multicultural & Indigenous Affairs v Awan (2003) 75 ALD 386 applied
Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476 cited
Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 followed
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 followed
Re Refugee Review Tribunal; Ex Parte H 75 (2001) ALJR 982 applied
Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 cited
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 considered
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 applied
PING LIU LING AND GUANG PING ZHANG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND MIGRATION REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA
N 800 of 2004
BRANSON J
19 AUGUST 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 800 of 2004

BETWEEN:

PING LIU LING
FIRST APPLICANT

GUANG PING ZHANG
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

19 AUGUST 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicants pay the respondents’ costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 800 of 2004

BETWEEN:

PING LIU LING
FIRST APPLICANT

GUANG PING ZHANG
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

JUDGE:

BRANSON J

DATE:

19 AUGUST 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT
INTRODUCTION

This is an application under s 39B of the Judiciary Act 1903 (Cth) for review of the decision of the Migration Review Tribunal (‘the Tribunal’) made on 21 April 2004 to affirm the decision of a delegate of the first respondent (‘the Minister’) that the second applicant is not entitled to an Other Family (Migrant) (Class BO) visa.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] FCA 1069
Decision Date: 19 AUGUST 2004

CaseChat Overview and Summary

In the case of Ling v Minister for Immigration, the applicants, Ms Ling and Mr Zhang, sought judicial review of the decision by the Minister for Immigration to refuse their application for an Other Family (Migrant) (Class BO) visa. Ms Ling, an Australian citizen and mother of Mr Zhang, sought to sponsor Mr Zhang and his son for the purposes of obtaining visas that would allow them to enter and remain in Australia permanently. The refusal of the application was based on the delegate's determination that Mr Zhang was in a long-term relationship with his ex-wife, which would make him ineligible for the visa as it would mean that his son would have an "overseas near relative" residing in China.

The primary legal issue before the court was whether the delegate's decision was lawful, reasonable, and supported by the evidence. Specifically, the court had to determine if the delegate was correct in concluding that Mr Zhang was in a spousal relationship with his ex-wife, which would disqualify him from obtaining the visa. The court examined the site visit reports and the decision record to assess the credibility of the evidence and the reasonableness of the delegate's conclusions.

The court found that the delegate's decision was lawful and reasonable. The evidence from the site visits, particularly the presence of women's clothing and toiletries at Mr Zhang's residence, supported the delegate's conclusion that Mr Zhang was in a long-term relationship with his ex-wife. The court held that the delegate was entitled to find that the applicants' explanations for the presence of these items were not credible. Consequently, the court dismissed the application for review and ordered that the applicants pay the respondents' costs.

The final orders of the court were that the application be dismissed and that the applicants pay the respondents' costs.

Orders

Orders of the court

1. The application be dismissed.

2. The applicants pay the respondents’ costs.

Background

Background to the litigation

For the reasons given below I have concluded that the application should be dismissed.RELEVANT FACTS Ms Ling, the first applicant, was born in China on 16 March 1936. She arrived in Australia on 15 September 1990 and was granted permanent residence on 21 January 1994. Ms Ling became an Australian citizen on 29 May 1997. Ms Ling is the mother of Mr Zhang, the second applicant. Mr Zhang has been divorced since 2 March 2000. Mr Zhang and his former spouse, Ms Li, have a son, Xiao Zhang, who is aged 19 years and lives with Mr Zhang. On 24 May 2000 the Department of Immigration and Multicultural Affairs (‘the Department’), as it was then known, received Mr Zhang’s application for an Other Family (Migrant) (Class BO) on behalf of himself and his son. On 5 April 2000 Ms Ling had made an application to sponsor Mr Zhang and Xiao for the purposes of their obtaining those visas which, if granted, would entitle Mr Zhang and his son to enter and remain permanently in Australia. On 1 August 2002, two officers of the Department based in China conducted a site visit at Mr Zhang’s residence in Zhaoqing City, Guangdong Province, China. A site visit report dated 7 August 2002 (‘the site report’), signed by the senior of the two officers, states:‘I observed a quantity of women’s clothing in Mr Zhang’s wardrobe and woman’s shoes on the floor. He initially said:· that the clothing belonged to an old girlfriend who left him one year ago· he had not cleaned out the room because he was lazy· the old girlfriend’s name is Huang Ai wen.· she lived with him for less than one month and he last saw her one year ago.I observed 3 toothbrushes and woman’s hairspray in the bathroom.Mr Zhang then stated that the clothes belonged to his sisters who left them behind last time they visited him.He advised that he is not on friendly terms with his ex-wife. The last time he saw he was at the divorce procedures. His son maintains weekly contact with her. The son then advised that he usually sees his mother once a week at a restaurant or at his grandmother (who lives nearby). His mother has recently moved to Guangzhou and he does not yet have her new contact details.As I left the top story apartment I noticed washing hanging out to dry. There were several items of men and women’s clothing. Mr Zhang claimed that this woman’s clothing belonged to one of his neighbours who was washing. He admitted the men’s clothing belonged to him.’ The site report concludes with the following comment:‘I found Mr Zhang’s response on who the women’s clothing belonged to evasive and inconsistent. In my view the clothing belongs to a female who resides at the apartment. I can make no conclusions as to whether the identity of this woman is the same as the ex-wife or another person.’ According to the decision record of the Department, another unannounced site visit took place on 10 October 2002. No record of this site visit was placed before the Court.THE DELEGATE’S DECISION

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BRANSON J

According to the decision record of the Department, another unannounced site visit took place on 10 October 2002. No record of this site visit was placed before the Court.THE DELEGATE’S DECISION A delegate of the Minister refused Mr Zhang’s visa application on 18 November 2002. The decision record states that:‘●a site visit to the applicant’s place of residence was undertaken unannounced on 07 august [sic] 2002 folio 44 refers and a further visit was undertaken unannounced on 10 October 2002. Ims [sic] case notes refers;·enough evidence was obtained during both site visits to reach the conclusion that the applicant is in a long term relationship. Refer to folios 44 and case note for details;●the evidence supports that applicant’s relationship is with his ex wife Li Yua Hua;●the evidence shows that the applicant and LI reside at the same premises as indicated by the women’s apparel and toiletries on the premises. The claims made by the applicant to the contrary are not credible;●from all the evidence obtained from the site visits it is reasonable to conclude that the applicant and LI are in a marital relationship;●the applicant’s partner has a father, mother, brother and two sisters living in China; and●the applicant’s partner has regular contact with her family.’ The delegate concluded that Mr Zhang, and therefore his son, had failed to meet the criteria required to be satisfied at the time of application for the Other Family (Migrant) (Class BO) visa. Mr Zhang was notified of this decision by a letter from the Australian Visa Office in Guangzhou. The letter also informed him that his sponsor, Ms Ling, could apply to the Tribunal for review of the decision within 91 days of the date of the letter. THE TRIBUNAL PROCEEDINGS Ms Ling made an application for review to the Tribunal on 29 January 2003, stating within that application that she would provide further submissions. Ms Ling provided further information to the Tribunal on 16 September 2003. On 1 December 2003, the Tribunal wrote to Ms Ling inviting her to comment on information. The letter extended the invitation in the following way:‘You are invited to comment, in writing, on the following information:·A report of a site visit conducted on 1 August 2002 at your son’s residential address reveals there was evidence of woman’s clothing and toiletries.This information is relevant to the review because this may lead the member to conclude that your son is in a spousal relationship with his ex wife. If this is considered the case all her relatives are considered as his “overseas near relatives”. This indicates your son may not be able to satisfy the definition of remaining relative in Regulation 1.15(1)(c)(i) which stipulates that your son and his spouse cannot have an “overseas near relative” residing in China. Thus he may not satisfy subclause 115.211.….Additionally, Section 359 of the Migration Act 1958 allows the Tribunal to invite a person to give it additional information that it considers relevant to the review of a migration decision. In order to better assess your case, the Presiding Member has asked that you provide the following information:·Evidence that your son and his ex wife are no longer in a spousal relationship and have not been in a relationship since the date of the application for the visa’

Ratio Decidendi

Legal Principle Established

Established by: BRANSON J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 800 of 2004

BETWEEN:	PING LIU LING FIRST APPLICANT GUANG PING ZHANG SECOND APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT MIGRATION REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	19 AUGUST 2004
WHERE MADE:	SYDNEY

JUDGE:	BRANSON J
DATE:	19 AUGUST 2004
PLACE:	SYDNEY